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David Strauss on court packing and the Supreme Court's credibility

‘Court packing’ ideas get attention from Democrats

Michael Scherer
March 11, 2019
The Washington Post

The once-remote idea of adding more justices to the Supreme Court to change its ideological bent is prompting growing discussion within the Democratic Party, creating a new frontier for presidential candidates looking to display their liberal credentials.

Former attorney general Eric H. Holder Jr., who recently decided against running for president, became the latest figure to embrace an expansion of the nine-member court in recent talks at Yale Law School and Columbia University.

He questioned the validity of the current court, given Senate Republicans’ refusal to vote on Judge Merrick Garland after President Barack Obama nominated him to the Supreme Court in March 2016. The seat was ultimately filled by President Trump’s nomination of Justice Neil M. Gorsuch.

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Some legal scholars warn, though, that the debate over court-packing risks weakening the court’s credibility further, since it suggests that the court is irrevocably political in its current form.

“The risk is really, one way or another, undermining the ability of the court to play the role it has played in American democracy,” said David Strauss, a professor at the University of Chicago Law School. “People have to be willing to go along with what the court does.”